Monday, June 25, 2007

Today the Supreme Court whittled away at the speech protection for public school students in Morse v. Frederick, the "BONG HiTS 4 JESUS" banner case from Juneau, Alaska, in an opinion by Chief Justice Roberts. Only Scalia and Thomas were solidly with Roberts.

Justice Alito wrote a very pointed concurring opinion (joined by Kennedy) saying that he viewed the reach of the majority opinion as very narrow. As members of the majority, they read the banner as advocating illegal drug use. Alito stressed that he "join[s] the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.' "(citing Justice Stevens dissent).

On the issue that actually got the case to the Supreme Court -- the Ninth Circuit's holding that the principal was personally liable for damages for suspending student Joseph Frederick -- there was unanimity: no liability. If the Ninth Circuit had not gone that far in its opinion last Spring, it is quite possible this case never would have got to the Supreme Court.

The extreme position taken by the principal and school board (the petitioners in the case, represented by Kenneth Starr, former Whitewater Independent Counsel who investigated President Bill Clinton and found Monica Lewinsky), and supported by the Federal government, that "the First Amendment permits public school officials to censor any student speech that interferes with a school's 'educational mission'" was rejected. (concurring opinion of Justice Alito).

Justice Stevens dissented (joined by Souter and Ginsburg). Stevens would allow advocacy of drug use. "It is also perfectly clear that 'promoting illegal drug use,' comes nowhere close to proscribable 'incitement to imminent lawless action.' Brandenburg, 395 U.S., at 447. Encouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship..."

Justice Thomas would have overruled the seminal case of Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969) that ruled that student may wear armbands to protest the Vietnam War. Thomas conducts an historical analysis of the rights of students in the Eighteenth and Nineteenth Century and finds that at the time of either the First Amendment or the Fourteenth Amendment there was no right of students to speak, and that teachers and schools had very broad powers to discipline and punish students who were disobedient or disorderly.

Justice Breyer would have restricted the ruling to the issue of the principal's liability and not ruled on the First Amendment question.